WKS v The State of Western Australia [No 3] - [2020] WASCA 141

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WKS -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2020] WASCA 141
CORAM:   BUSS P
MITCHELL JA

HEARD:   19 AUGUST 2020 AND ON THE PAPERS
DELIVERED          :   1 SEPTEMBER 2020
FILE NO/S:   CACR 103 of 2019
BETWEEN:   WKS
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Appeal - Practice and procedure - Application for review of decision refusing leave to issue subpoena - Whether second application to review the same decision is competent

Legislation:

Supreme Court Act 1935 (WA), s 61(3)

Result:

Review application dismissed

Category: A

Representation:

Counsel:

Appellant	:	In person
Respondent	:	R G Wilson

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Ponnambalam v The State of Western Australia [2015] WASCA 185
Vella v The Queen (1991) 4 WAR 278
WKS v The State of Western Australia [2020] WASCA 37

JUDGMENT OF THE COURT:

On 19 August 2020, we sat on the return of an amended Registrar's Notice to Attend dated 26 June 2020, for the purpose of hearing the appellant's application in an appeal dated 7 June 2020, and filed on 12 June 2020, for review of a single judge's decision. At that time the appellant, who is self-represented, indicated that he was not in a position to make oral submissions on the review application. At the appellant's request, we made orders that, by 4 pm on 26 August 2020, the appellant may file and serve written submissions in support of his application for review dated 7 June 2020, and that the court would determine the application for review on the papers without an oral hearing. The appellant filed further written submissions pursuant to those orders.
The appellant's application for review of a single judge's decision dated 7 June 2020, and filed on 12 June 2020, identifies decisions of Mazza JA made on 14 January 2020 and 12 May 2020. The brief description of the decision sought to be reviewed in the appellant's application is 'denial of application for summons Auscript'.
Mazza JA's order of 14 January 2020 relevantly dismissed the appellant's application in an appeal dated 10 December 2019, which was filed on 27 December 2019. The application in an appeal dated 10 December 2019 sought leave to issue a subpoena to Auscript in respect of transcripts for a 'main pretext call'.
By an application dated 26 January 2020 and filed on 31 January 2020, the appellant applied for a review of Mazza JA's decision to dismiss the application in an appeal dated 10 December 2020. On 26 March 2020, we made an order dismissing the application for review dated 26 January 2020. We published reasons for that decision.[1]
[1] WKS v The State of Western Australia [2020] WASCA 37.
The only decision made by Mazza JA on 12 May 2020 was to adjourn the matter to a directions hearing on 21 May 2020. Prior to that directions hearing, the appellant had written a letter to the court dated 11 May 2020, which indicated that he wished to be heard on 12 May 2020 on points which included 'Auscript and EA section 50A'. At the directions hearing, Mazza JA referred to this point in the appellant's letter:[2]
MAZZA JA: Is this going back to your allegation that the – I think your allegation is that both the tape or the digital recording of the trial in which you were convicted has been doctored or, alternatively, that the transcript has been doctored? I use that word pejoratively.
APPELLANT: The – yes. The recording has been doctored – fabricated, basically – and the transcripts were made from different recordings done by Auscript.
MAZZA JA: Yes.
APPELLANT: Prosecution raised up that the transcripts are not evidence. Well, under section 50A of the Evidence Act, they are, so I wanted to raise that again. And also - - -
MAZZA JA: Well, that's not a matter that I can deal with in a directions hearing. That's a matter that you can address, ultimately, to the bench of three judges that deal with your appeal against conviction. What I'm going to do … is I will direct the Court of Appeal office to provide Mr Wilson with a copy of the letter dated 12 May 2020 (sic).
APPELLANT: Yes.
[2] Appeal ts 106.
Later in the directions hearing, the appellant asked Mazza JA if he could make another application for a subpoena directed to Auscript. Mazza JA indicated that the appellant could make an application, but whether the application would be granted or not was another matter.[3]
[3] Appeal ts 107 - 108.
So far as the appellant seeks a second review of Mazza JA's decision of 14 January 2020 refusing leave to issue a subpoena to Auscript, the review application is incompetent. The appellant has already exercised his right to apply for a review of that decision and his review application has been determined and dismissed.
Section 61(3) of the Supreme Court Act 1935 (WA) provides that a person who is dissatisfied with a decision or order made by a single judge may apply to the Court of Appeal to set aside or vary the decision or order. Nothing in the terms of s 61(3), or the legislative context, suggests that a person dissatisfied with a single judge's decision or order may make multiple review applications under s 61(3) of the Supreme Court Act in respect of that decision or order. Commonly, provisions conferring statutory rights of appeal are construed as authorising only a single appeal so that an appellant is not entitled to commence multiple appeals from the same decision.[4] In our view, s 61(3) should be construed in the same manner, as only providing for a single review application in respect of a decision or order. The right to apply under s 61(3) to set aside a decision or order of a single judge is spent once the first application for a review of that decision or order is made and has been determined by the Court of Appeal.
[4] See Vella v The Queen (1991) 4 WAR 278, 280 - 282; Ponnambalam v The State of Western Australia [2015] WASCA 185 [30] - [31].
It is debateable whether Mazza JA's failure to grant leave to issue a subpoena at the directions hearing on 12 May 2020 is a separate 'decision' from that made on 14 January 2020 for the purposes of s 61(3) of the Supreme Court Act. To the extent that it is a separate decision, so that the appellant's application to review that decision is competent, no arguable error has been demonstrated in his Honour's approach.
Further, it remains the case that the material before us does not indicate any reasonable prospect that a summons to Auscript would assist the appellant in demonstrating that the recording of the 'pretext call' was fabricated. Nothing advanced by the appellant in support of the current review application alters that view, which we expressed in dealing with the appellant's first review application.[5] The further written submissions filed by the appellant on 26 August 2020 are difficult to follow in many respects, but appear in essence to repeat the argument he advanced in the first review application.[6] Those further written submissions are rejected for the reasons explained in our decision on the first review application, set out below for ease of reference:[7]
It appears that the issue of tampering with the recording of the second pretext call was a live issue at the appellant's trial. There does not appear to have been any evidence led at trial objectively indicating that there was any tampering with the recording. There was no evidence before Mazza JA which provided any objectively reasonable basis for apprehending that the recording of the second pretext call, which was tendered as an exhibit in the appellant's trial, may have been fabricated. Further, the recordings were exhibits at trial, and transcripts of the recordings were incorporated into the prosecution brief before the commencement of the appellant's first trial. Any change in the recording after the transcript was incorporated in the prosecution brief would be evident from a comparison of the transcript and exhibit. It was the recordings and not the transcript which constituted the evidence before the jury.
The material before Mazza JA did not indicate, and the material before us does not indicate, any reasonable prospect that a summons to Auscript would assist the appellant in demonstrating that the recording was fabricated. There is no evidence objectively indicating the existence of multiple versions of transcripts of the recorded pretext calls. There is no evidence, beyond the appellant's speculation and assertion, that Auscript produced or holds multiple versions of the transcript. In the circumstances, Mazza JA was correct to conclude that the issue of a subpoena would be futile. No error of principle is apparent from his Honour's reasons, and the result of the exercise of the discretion to refuse leave to issue the subpoena cannot be described as unreasonable or plainly unjust. To the contrary, in our view, his Honour's decision was correct.
[5] WKS [24].
[6] Summarised in WKS [16] - [17].
[7] WKS [23] - [24].
Therefore, the appellant's review application dated 7 June 2020 and filed on 12 June 2020 is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell
1 SEPTEMBER 2020